In November 2014, President Obama issued an executive order to delay the deportation of millions of undocumented immigrants. But a group of GOP-governed states immediately sued to block the order from going into effect, and this week, their challenge will be heard by the U.S. Supreme Court. On today’s episode, [Amicus] preview[s] United States v. Texas with Brianne Gorod of the Constitutional Accountability Center. Gorod co-authored an amicus brief in support of the White House’s position in the case.

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Partial transcript:

Dahlia Lithwick: …But first, we’re going to take a closer look at that immigration case that’s being argued Monday called United States v. Texas. It centers on Obama’s big executive order from 2014, the president’s Deferred Action for Parents of American Citizens and Lawful Permanent Residents, or DAPA, along with his expansion of the Deferred Action for Childhood Arrivals program, or DACA.

The program is expected to allow some 4.9 million undocumented immigrants to temporarily work and stay in the country, but it has never been implemented. And that’s because a group of Republican-governed states led by Texas almost immediately sued to block it. The issue for the court is pretty simple: Does the president have the unilateral authority to take this kind of immigration action? And as a secondary but perhaps just as important question, do the state governments have legal standing to sue the federal government over measures they just don’t like?

Joining us to discuss United States v. Texas is Brianne Gorod. She’s chief counsel at the Constitutional Accountability Center and co-authored an amicus brief on behalf of a bipartisan group of former members of Congress who support the Obama administration’s side in this case. So, welcome to Amicus, Brianne.

Brianne Gorod: Thank you for having me.

Lithwick: Now, did I explain that OK? Do you want to take us back to 2014 and help us understand how we got to where we are today?

Gorod: Sure. And, I think it’s actually helpful to go back even further than 2014.

Because, what’s really important to understand about this case is that for decades Congress has conferred substantial authority on the executive branch, on the president, to exercise discretion in determining how best to implement the nation’s immigration laws.

This isn’t surprising, right? I mean, immigration is a field in which events on the ground are constantly changing. It’s a field that touches on our national security, on foreign policy. And so Congress has determined that the executive, within the guidance provided in the laws passed by Congress, should determine how best to implement those laws.

So in 2014, when President Obama announced this DAPA program, that’s exactly what he was doing. He was exercising the discretion that Congress has repeatedly and consistently conferred on him.

Lithwick: The idea is that this is kind of an element of foreign policy, and that the president is best situated to know what the facts are on the ground, right? This is a lot of moving parts, and of the branches, we think the executive is in the best possible posture to know what’s going on and what needs to be done. Is that right?

Gorod: That’s absolutely right.

And that’s why, in these initiatives, the president made a point of saying that we’re going to prioritize removing individuals who have criminal records, who pose a national security threat, who have recently come across the border. And we’re not going to prioritize removing people who have been here for a long time, who are productive members of the American community, and, significantly, who have children who are US citizens or lawful permanent residents. No, there’s just no need for us to prioritize removing those people, particularly given that there are limited enforcement resources.

There are roughly 11 million undocumented individuals in the country today, and Congress has not appropriated enough money to remove all those individuals. The president necessarily has to make decisions about which individuals to prioritize when it comes to removal. And that’s what he’s doing in these initiatives.

Lithwick: Now take us back and tell us about these suits.

We have 25 states, mostly controlled by Republican legislators, who all get on board and accuse the president of what, specifically? Massive overreach, way outside the boundaries of his executive prerogatives? The substance of the suit is what? That he just does not have the authority to do this kind of executive action?

Gorod: They say, basically, that these actions violate this federal law called the Administrative Procedure Act.

It sounds very wonky, but it’s just a law that governs how administrative agencies, federal agencies operate. They say that it violates it for two reasons. One, they say these initiatives are what’s called arbitrary and capricious, so they violate the immigration laws that Congress has passed. And, they also say that it violates what’s called notice and comment rule-making requirement.

This is a basic requirement that often applies to agency action. It says, when you are going to do something, you need to give the public notice about it, and you must allow people to comment on it before you issue a final rule. What’s really important to know about the Administrative Procedure Act, is that it expressly exempts general statements of policy from that requirement. And, that’s what these directives are. They simply give the public information about how the agency is going to exercise the discretion that it was granted by Congress.

So the thrust of the case, then, is do these directives violate the immigration laws, or are they consistent with the immigration laws? What the government has consistently argued—supported by amici, friends of the court’s briefs from members of Congress both current and former, from the business community, from faith leaders, from a whole host of people—is these directives are entirely consistent with the immigration laws because those laws specifically confer authority on the executive branch to make these sorts of decisions. To decide what our enforcement priorities are, to decide how best to implement those enforcement priorities.

Lithwick: Brianne, what do you say to the argument, on the other side, that this simply represents the Obama administration trying to achieve unilaterally what Congress was supposed to do in the first instance, which is reform and fix immigration policy?

Gorod: That’s a common misperception of this case, obviously pushed by the other side, that President Obama was just acting because Congress wouldn’t. But the fact is that Congress has acted. Congress has, over the years, repeatedly enacted immigration laws. And what the President is doing in this case is simply exercising the authority that those immigration laws very specifically grant him.

These actions are not a substitute for a comprehensive immigration reform. But the fact that Congress hasn’t passed that reform doesn’t do anything to alter the pre-existing authority in the immigration laws that Congress has repeatedly passed over the years.

Lithwick: Can you tell us, Brianne, how this case gets its way all the way up to the U.S. Supreme Court so quickly, and how it is that the court is looking at an issue that has not yet gone to trial?

Gorod: This was brought in District Court, and the District Court entered what’s called a preliminary injunction. Basically we’re not going to have a trial first, we going to look at the legal arguments and decide whether we think there’s a likelihood that the parties have a chance of prevailing on the merits, as well as a number of other factors. So the District Court entered that preliminary injunction. It then went to the Fifth Circuit and was briefed there on an expedited basis. The Fifth Circuit ruled in a divided decision for the states. And then the Supreme Court took it up.

It does feel quick, to some degree, by legal standards. The law often moves quite slowly. But for folks who have been waiting to know whether these programs will go into effect, it actually feels like quite a long time.

These programs were supposed to have gone into effect well over a year ago, back in February. Because they were enjoined, because the District Court blocked them, nothing has happened. And nothing can happen until we get this ruling from the Supreme Court.

Lithwick: That’s such an important point that I think folks don’t realize, that this in effect presses pause on this executive action. Until the court makes some determination of how to go forward, there’s a tremendous amount of uncertainty about executive actions that are two years old now.

Gorod: That’s right. That’s why I think it’s so important that we get a majority ruling from the court.

Since Justice Scalia passed away there’s been lots of talk of 4–4 decisions. We’ve seen a couple of them already, and there’s been speculation about whether we’ll see one in this case. I don’t think we will. I think we’re likely to see a majority of the Justices on the court rejecting this challenge to the administration’s initiatives.

But if we didn’t, if we saw a 4–4 decision, it would really leave a lot of legal confusion and mess, because we have what is a nationwide injunction. That means that this injunction by a single lower court is applying across the entire country. There’s going to be a lot of legal questions about what that means if we don’t get a majority ruling out of the court this June.

Lithwick: Brianne, I want you to unpack what you just said. Can you help our listeners understand why the court might not even get to this fundamental question about executive power, because the first thing they need to determine is whether the states even have a right to bring this suit?

Gorod: Sure. Standing, as a constitutional doctrine, it governs whether a party can get into court at all. It’s important to understand, if the parties don’t have standing, the court can’t get to the merits. It’s not allowed to get to the merits. It has to dismiss the case for that reason alone.

An important part of standing is that the plaintiff must have a legal injury, a real injury that the courts can address. The major injury that Texas asserts here is that they provide subsidized driver’s licenses to recipients of deferred action. If there are all these recipients of deferred action under the President’s immigration initiatives, that’s going to increase their costs of subsidizing driver’s licenses.

The government’s response to this is, basically, you chose to subsidize these driver’s license. That is a voluntary choice on your part. You can’t manufacture this kind of injury to get into court.

I think what’s going to be really interesting, in argument, is to focus on and listen to what questions the chief justice in particular asks about standing. In his first decade on the court, Chief Justice Roberts has been a consistent vote to limit parties’ abilities to sue. In case after case that’s been his view, and it’s been a very strongly stated one.

He was actually in dissent in the key case, or one of the key cases, that the states rely on to establish standing. I think those past votes of the chief are particularly important because the chief justice is also really concerned about politicization of the court. He’s really concerned about this growing perception that the Supreme Court is a partisan institution, that the justices are just perceived as politicians in robes. And I think if he were to conclude that these plaintiffs do have standing and then vote to invalidate the President’s executive action, it might well look like his views on standing were being driven not by the law, but by the politics of the case.

I think there’s a really good chance that Chief Justice Roberts may not reach the merits of this case at all.

Lithwick: If the court were to say, yes, standing is conferred on these dissenting states simply because they have to issue these driver’s licenses, what are the implications going forward?

Gorod: The government argues that would just be a radical expansion of standing doctrine.

I mean, it would basically invite states to go into court whenever they have any disagreement with federal policy, which would really just change the nature of what the courts are supposed to do, bringing them into all kinds of political disputes. That’s a major argument that the government has been making in this case, and one reason why I think we may see a lot of discussion of standing and the courts past indecisions, and trying to understand how this case is different than those past cases.

Lithwick: Brianne, I want you to help listeners contextualize what all this means in terms of something you suggested earlier, which is that we’re just in a moment where the court looks really partisan, we are seeing appeals of this sort from Republican governors in Republican states. This feels to me like one of those lawsuits that is alleging that Barack Obama has gone crazy and all he wants to do is seize power, and he’s King George, and this is nuts. It seems of a piece with this larger sensibility around this court vacancy, which is this President is lawless and we need to get someone in office who is under control. Is that a fair characterization of at least some of the theatrics that are going around underneath the surface of this lawsuit?

Gorod: I think that’s right. It’s hard not to understand this lawsuit brought by Republican state officials, supported by Republicans in Congress, as anything more than political objections to policies that they don’t like.

I think it’s important to remember that these actions a decade ago would not have been controversial at all. The immigration laws that provide the authority for these executive actions were passed in Congress on a bipartisan basis. Congress has repeatedly blessed deferred action programs like this on a bipartisan basis. In fact, programs like this have been utilized by presidents of both parties going back to the Eisenhower administration.

One of the big issues in the case is whether deferred action recipients can apply for work authorization. The authority to apply for work authorization actually comes not from the Obama initiatives, but from regulations from federal law that dates back to the Reagan administration. So these actions should have been entirely uncontroversial, but in this era when there is a party that is trying to stop President Obama at every turn no matter what he does, this seems like just another effort to get the courts involved in what is essentially a political and policy dispute.

Lithwick: Brianne Gorod is chief counsel at the Constitutional Accountability Center and co-authored an amicus brief on behalf of a bipartisan group of former members of Congress supporting the Obama administration in this litigation. Brianne, thank you very, very much for joining us this week on Amicus.

Gorod: Thank you for having me.